JUDGMENT OF 11. 7. 1980 — CASE 798/79 HAUPTZOLLAMT KÖLN-RHEINAU v CHEM-TEC

In Case 798/79 REFERENCE to the Court under Article 177 of the EEC Treaty by the Bundesfinanzhof [Federal Finance Court] for a preliminary ruling in the action pending before that Court between

THE COURT (First Chamber) composed of: A. O'Keeffe, President of Chamber, G. Bosco and T. Koopmans, Judges, Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts and written procedure

II — Summary of the written observations submitted to the Court

1. Observations submitted by Chem-Tec

2. Observations submitted by the Commission

Decision

Costs

I —. Facts and written procedure

II —. Summary of the written observations submitted to the Court

1. Observations submitted by Chem-Tec

2. Observations submitted by the Commission

—. Masks of textile materials, used by surgeons, nurses, etc., operating upon or attending to a patient (heading 62.05).

—. Masks for protection against dust or particles of materials, consisting of a simple wire mesh sheath with no filtering device other than a sheet of gauze (Section XV).

—. Masks for administering anaesthetics (heading 90.17).

1. By an order of 16 October 1979 received at the Court on 9 November 1979 the Bundesfinanzhof referred to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling a question on the interpretation of the expression breathing appliances (including gas masks and similar respirators) occurring in heading 90.18 of the Common Customs Tariff.

2. That question arose during the course of a dispute over the classification of a consignment of 8500 filter masks from the United States, cleared through customs on 29 June 1972 by the competent office at Köln-Rheinauhafen for the account of the undertaking Chem-Tec. At first the customs office classified the goods under tariff heading 90.18:

3. The objection which Chem-Tec made against the corrective classification decision was rejected and Chem-Tec then brought an action before the Finanzgericht Düsseldorf, which ruled in its favour, holding that the tariff classification was determined by the function of the masks, so that tariff heading 90.18 was the correct heading. The Hauptzollamt Köln-Rheinau lodged an appeal on a point of law before the Bundesfinanzhof against the judgment of the Finanzgericht.

4. The question referred to the Court by the Bundesfinanzhof is worded as follows :

5. Owing to their oval shape which fits the curves of the face, to their side-straps and to a metal clip intended to be pressed down on the bridge of the nose, the masks in question constitute appliances which are easy to wear, let the air through easily and therefore ensure easy breathing. According to Chem-Tec's statements they are a crude type of filter masks for protection against dust, consisting of a sheet of long-fibred, multiple-ply paper and are intended to be used once only; they are thrown away once their filtering power is exhausted (after eight hours at the most).

6. The Commission is of the opinion that in order to come within tariff heading 90.18 an article must not only have a specific function, that of permitting or facilitating breathing, but also constitute an appliance within the meaning of the tariff classification.

7. It relies on Chapter 90 of the Explanatory Notes to the Nomenclature of the Customs Cooperation Council, according to which the Chapter

8. It is evident both from the wording of tariff heading 90.18 and from the Explanatory Notes above that the criterion of simplicity cannot be adopted to exclude an appliance from Chapter 90 of the Common Customs Tariff.

9. This conclusion is supported by a reading of the Explanatory Notes on tariff heading 90.18 as they existed before October 1979, which state that that heading covers not only typical gas masks, but also breathing appliances of all kinds, adding:

10. The Commission relies on the fact that the list of products not covered by tariff heading 90.18 was added to as follows by the Customs Cooperation Council in October 1979, to support the conclusion that the masks in question come withing heading 59.03:

11. However, as the Court stated in its judgment of 15 February 1977 in Joined Cases 69 and 70/76 (Dittmeyer [1977] ECR at p. 238), although the opinions of the Committee on Common Customs Tariff Nomenclature constitute an important means of ensuring the uniform application of the Common Customs Tariff by the customs authorities of the Member States and as such may be considered as a valid aid to the interpretation of the tariff, nevertheless such opinions do not have legally binding force so that, where appropriate, it is necessary to consider whether their content is in accordance with the actual provisions of the Common Customs Tariff and whether they alter the meaning of such provisions.

12. The same conclusion must apply in regard to the Explanatory Notes of the Customs Cooperation Council.

13. It may be seen from the very wording of heading 90.18 that the expression breathing appliances must be understood as being a wide category which includes the more restricted one of gas masks. It is true that the appliance in question, of which samples have been submitted to the Court, is a simple device but its simplicity alone cannot exclude it from the relevant heading particularly since it fulfils well the specific purpose of a breathing appliance, which is to protect the mouth and the nose and to permit or to facilitate breathing.

14. For that reason the answer which must be given to the question referred to the Court by the Bundesfinanzhof is that the expression breathing appliances (including gas masks and similar respirators) occurring in tariff heading 90.18 of the Common Customs Tariff must be interpreted as meaning that it also includes simple filter masks which, although covering only the mouth and nose, serve as protection against toxic chemical products, dust, smoke and fog and which are intended to be used once only.

15. The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. As the proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds, THE COURT (First Chamber) in answer to the question submitted to it by the Bundesfinanzhof by order of 16 October 1979, hereby rules:

1 Translator's note: The English version of the tariff heading docs not in fact include these words.